Textualism vs. contextualism

The current composition of the Court has not changed since the appoint of Justice Stephen G. Breyer in 1994, thus making it one of the longest serving groups of justices in the Court's history. Since no one announced his or her resignation this past spring (the traditional time to do so in order to give a president the time to nominate, and the Senate to confirm, an appointee in time to take a seat before the Court convenes in October), it appears that the same line-up of justices will hear the cases in the coming Term. Although it is still impossible to predict how the Court will vote on some issues, a relatively clear alignment of three factions has developed, as well as two different views on how the Court should interpret the Constitution.

Chief Justice Rehnquist, along with Antonin Scalia and Clarence Thomas, form the conservative bloc, and while they occasionally differ on some issues, are the most consistent of the justices in voting together. Although "liberal" is hardly the right word—since there are no liberals on this Court in the mold of a Brennan or a Douglas—the center-left bloc consists of the two Clinton appointees, Ruth Bader Ginsburg and Stephen G. Breyer, usually joined by John Paul Stevens. In the center are Sandra Day O'Connor and Anthony Kennedy, who tend to lean toward the conservatives, and David Souter, who tends to lean toward the moderates. O'Connor and Kennedy are the swing votes, and they are rarely in the minority.

The two most articulate spokesman for the differing views of jurisprudence are Justices Scalia and Breyer. As Linda Greenhouse of The New York Times points out, the old labels of "liberal" and "conservative," "activist" and "restrained," do not fit the members of the Rehnquist Court. The activism of the conservatives, especially in matters of states' rights, federalism and the Eleventh Amendment, has nullified the epithet once flung exclusively at liberals. Even the recent debate between "originalism" and a "living Constitution" appears to be forgotten. The current division on the Court pits those who elevate "text" above all other considerations, and those who emphasize "context."

The leading advocate of the textual school is Justice Scalia, for whom language is all important, whether it be of the Constitution, a statute, or an administrative regulation. Scalia believes the responsibility of a judge is to find a bright line test, one that can guide lower courts, lawyers, and legislators. Constitutional interpretation is thus a matter of rules, and these rules are based on fixed, unyielding principles. In a speech recently he declared that "The Constitution I interpret is not living, but dead," and as such is fixed for all time. The same would be true of a statute. Once it leave the halls of Congress and receives the president's approval, then it too is fixed, and a judge must interpret the statute based solely on what it says. "Our first responsibility is not to make sense of the law," he declared, "our first responsibility is to follow the text of the law." As such the high court must fashion rules, not general principles, that will guide the lower courts in their decision-making. Ten years ago, the noted constitutional scholar Kathleen M. Sullivan, now dean of Stanford Law School, described Scalia as "The Justice of Rules and Standards."

Justice Breyer has been slow to take up his position, although if one goes back in his eight years on the bench as well as his prior experience as a congressional aide, his views are consistent. For Breyer, who has had experience with legislative drafting, the words are important but of equal weight is the context in which they were written. He set forth what he terms three principles that he believes should guide the high court's decision-making in the James Madison Lectures he delivered last fall at NYU Law School.

First, he believes the Court should look at the purpose as opposed to the text of the constitutional clause or statute under review. Instead of simply asking "What did they say?" he would ask "What did they mean to accomplish?' Second, what would be the impact of a decision, and without directly mentioning Scalia, declared that a literalist approach can be just as subjective and results-oriented even as it hides behind the fig leaf of rules. Finally, the Framers wrote the Constitution to foster "participatory democratic self-government." The Court, therefore, should not pre-empt a "national conversation" in which a new understanding of of the law "bubbles up from below."

It is by no means clear that an adherent of rules need be a conservative while a contextualist will be a liberal. Hugo Black, who also believed in fixed rules, wound up for most of his career as one of the leading liberals on the Court, while his arch-for, Felix Frankfurter, advocated standards that took context into account, and he became the leading conservative on the Warren Court. Attempting to use these categories will not enable one to predict how justices will vote in any particular case. In the 2000 Term, Scalia wrote the majoritythat police could not use high tech devices to search a home from the outside without a warrant, certainly an opinion that would seem to be more contextual than rule-driven, yet his opinion indicated that he could reach this "liberal" opinion by a close reading of the Fourth Amendment. Similarly, Breyer voted with conservatives to uphold a school district's broad drug-policing policy on the grounds that it had resulted from a genuine democratic debate in the community.